Crl.R.P. No. 1272 of 2009 v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 1272 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT SC 490/2001 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, THALASSERY CRA 115/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY ``` ## **`REVISION PETITIONERS/APPELLANTS/ACCUSED:`** - `1 C.SANTHOSH(CORRECTED AS C.SATHEESAN) AND ANOTHER YEARS, PUTHIYAPARAMBATH HOUSE, EDAKKAD, AMSOM, KIZHUNNA. (THE NAME OF REVISION PETITIONER IS CORRECTED AS C.SATHEESAN INSTEAD OF C.SANTHOSH IN THE CAUSETITLE OF CRL.RP AS PER ORDER DATED 31/10/2023 IN CRL.MA 1/2023 IN CRL.RP 1272/2009.)` - `2 K.PRAJEESH SO.KRISHNAN AGED 30 YEARS, KAKKARA HOUSE, EDAKKAD AMSOM,, NADAL THERU. BY ADVS. M.RAMESH CHANDER (SR.) K.A.SANJEETHA` ## **`RESPONDENT/COMPLAINANT & STATE:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY P.P, SRI. RENJITH GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 1272 of 2009 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 1272 of 2009 ============================ Dated this the 2[nd] day of November, 2023** ## **O R D E R** The revision petitioners herein are the accused in S.C. No. 490 of 2001 of the Prl. Asst. Sessions Judge, Thalassery alleging commission of offence punishable under Section 55(a) of the Abkari Act. 2. The gist of the prosecution case is that, on 28.05.2008 at 9 am, the Sub Inspector of Police Dharmadam Police Station who was on law and order duty with other police constables intercepted the motorcycle driven by the 1[st] petitioner. When the records pertaining to the vehicle were demanded it was submitted that the papers regarding the motorcycle were not with him. It was found that the 2[nd] petitioner who was the pillion rider was having a cardboard box. On suspicion, the police examined the cardboard box carried by the 2[nd] petitioner and it was found to have contained Indian-made Foreign Liquor. According to the prosecution, 5 bottles of green channel whisky having a capacity of 750 ml each, 4 bottles of brandy having a capacity of 750 ml each and 5 bottles of rum having a capacity of 750 ml and one bottle of VSOP having a capacity of 750 ml was found in their possession and thereby the Crl.R.P. No. 1272 of 2009 :3: accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 7 and Exts P1 to P6 were marked. Mos 1 to 8 were identified. The trial Court found the accused guilty and convicted them to undergo simple imprisonment for a period of two years and to pay fine of Rs.1,00,000/- each and in default of payment of fine, to undergo simple imprisonment for a further period of six months each. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.115 of 2005 which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld. 5. The revision petitioners raised the following contentions. It is contended that the samples have not been labelled and the same is admitted by PW5. PW7 also admits that there is non affixture of label in the material objects produced before the court. The revision petitioners have also taken a contention that there is no specimen seal in the forwarding note nor the name of the guard through whom the contraband was sent for examination is mentioned. 6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Crl.R.P. No. 1272 of 2009 :4: Abkari Act. This court in **Baburaj v. State of Kerala, 2021 (6) KLT 416** , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in **Sathi v. State of Kerala, 2007 (1) KLT SN 57.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. The first contention raised by the petitioner is that the samples have not been labelled, even though in Ext P1 mahazar it is shown that the sample taken was sealed and signature of the accused and the detecting officer was affixed and specimen seal was affixed. In the examination of PW 5 detecting officer, it is admitted that it is not seen that in the sample bottles, any label has been affixed and any signature of the witness has been obtained. Even though the cardboard boxes were also produced and marked, no such sample or signature of the witness is seen affixed on the same. The evidence of PW 7 is also in the same line and he would depose that he cannot say the reason for non-affixture of the label in the material produced before the Court. In **Sasidharan v. State of Kerala, 2007 (1) KLT 720,** this court in paragraph 10 of Crl.R.P. No. 1272 of 2009 :5: ## the judgment held as follows: _“10. There is yet another infirmity in the evidence. While according to PWs 1 and 2 and the recitals in Ext.P1 mahazar, the seized can was sealed and labelled, the property list does not show that the can which was produced in court was sealed. PW4 has admitted that in Ext.P4 filed by him in court there is no mention that the can which was seized was either sealed or labelled. M.O.1 can which was produced in court from the custody of PW4 was an empty can on which there was no seal or label at all. Every such can will look alike and it is really surprising that PWs.1 and 2 who were testifying before court after 5 years of detection had no difficulty to identify M.O.1 as the can which was allegedly seized from the appellant. It is not possible to accept the identification of the can, by such officers who are not possessed of super-human powers of recollection._ ## In **Sumathy v. State of Kerala, 2016 (4) KLT SN 37** the court held in paragraph 7 as follows: _“7. Here, immediately after the arrest of the appellant, the contraband articles were seized at the place of occurrence, after taking sample. They failed to affix label in MO1. Affixing label in the contraband articles and obtaining signature in the presence of the independent witnesses ensure the compliance of the procedure provided in the Abkari Act and Kerala Excise Manual for Crime-Detection, enquiry, trials. The signatures should be secured in the label and seal the articles in the presence of the independent witnesses which will fasten the credibility of the evidence of the Excise Officials. In this case, PW2 admitted that_ Crl.R.P. No. 1272 of 2009 :6: _no label was found in the seized articles when he was examined before court. When there is no label in the seized articles and there is violation of the procedures provided in the Kerala Excise Manual, more independent evidence is necessary to prove the seizure. Therefore, it is necessary to obtain the signature of the witnesses, the accused and the officer shall put his signature in the label affixed in the articles. When there is no signature of the witnesses, the accused and the officer in the label, no credibility can be fastened upon such evidence.”_ In view of the above-said lacuna, the revision petitioners are entitled for the benefit of doubt. 8. The second contention raised is that in Ext P5 forwarding note, there is no specimen seal affixed nor the name of the guard through whom the contraband was sent for examination is mentioned. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. This court in **Vijayan v. State of Kerala, 2021 (5) KLT 321,** has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note. In Crl.R.P. No. 1272 of 2009 :7: **Nadarajan v. State of Kerala, 2020 (3) KLT OnLine 1030** , it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note, there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. This court in **Sasidharn v. State of Kerala, 2007 (1) KLT 720** has considered and emphasized the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper-proof condition. Relying on the judgment of the Apex Court in **State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314** , this court in **Sasidharn** ’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the seal of the sample has not been tampered with. The Apex Court in **Vijay Pandey v. State of U.P., AIR 2019 SC 3569** has held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. In view of the lacuna pointed out above, it is to be held that the Crl.R.P. No. 1272 of 2009 :8: prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to the benefit of doubt. 9. The further contention that in Ext P5 the name of the guard through whom the contraband was sent for examination is not mentioned. This court in **Kumaran v. State of Kerala,** ## **2016 (4) KLT 718** , held as follows: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However,_ Crl.R.P. No. 1272 of 2009 :9: _since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 10. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioners/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the Crl.R.P. No. 1272 of 2009 :10: conviction and sentence passed by the courts below and the revision petitioners/accused is acquitted of the charges levelled against them. The bail bond shall stand cancelled and they are set at liberty. Needless to say, if the revision petitioners/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/VIJU ABRAHAM JUDGE** sbk/-